What should I do if my flexible working request is refused?

I am not certain from your email, but it sounds as though you submitted your request formally under the company procedure.

Occasionally, employers will deal with flexible working requests on an informal basis (usually when there is no issue in agreeing the request), but otherwise the statutory procedure will apply.  This means that upon receiving a flexible working request it must:

1.     deal with the request in a reasonable manner;
2.     give you a decision within the decision period (generally 3 months from the date when the request is made); and
3.     only refuse a request on one of the prescribed grounds.

Therefore if your employer has valid reasons and treats your request reasonably, then it is entitled to refuse it and require you to return on your original terms.

Flexible working requests should be treated as a balancing exercise, weighing up what you want versus the needs of the business.

The burden of additional costs is a potential ground for refusal and it is a subjective test on the part of your employer.

Whilst there is no obligation on your employer to provide an explanation as to why this ground applies, in this case it would be beneficial for your understanding of the situation for it to do so.

I agree with you, your loss of pay is likely to offset the cost of having someone cover the extra day, but it may be that practically it would be difficult for your employer to recruit on a one day a week basis (or cover the work within the existing workforce).

Whilst the working from home arrangement prior to your maternity leave was an adjustment your employer was prepared to make to accommodate your condition (and so not necessarily an arrangement you could expect to continue after your return), it does suggest that working from home is feasible.

Again I would ask for clarification around the rationale it has provided as to why this will not work.  Not knowing the nature of your work it is difficult to imagine what kind of catastrophe it thinks might happen.

You could try suggesting a trial period to see if this might allay some of its concerns over contact if you are not physically in the office.

In any event, your employer’s decision should be communicated to you in writing.  It seems a little pointless to hold an informal meeting where the purpose is to refuse your request so I would go back and ask for confirmation in writing.

You can then appeal against the decision and the reasons relied upon if you believe the outcome is based on incorrect facts or if you do not think proper consideration has been given to your request.

It is usual practice for someone independent and more senior to chair the appeal meeting, but whoever does so should have the authority to overturn the original decision.

Claims in the employment tribunal under the flexible working legislation are quite limited both in terms of grounds for complaint and remedy.

For example, a tribunal cannot question the commercial rationale for rejecting a request: it can review the procedure, consider whether the request was given proper consideration, consider whether the decision was based on correct facts and whether the reason relied upon is one of the prescribed reasons.

When looking at factual correctness, however, it is open for a tribunal to consider evidence around such things as the effect of granting the application, what other staff think about it and whether the work could be covered.

If successful in a claim under the flexible working legislation, a tribunal could order reconsideration of the request  and/or make an award of compensation (a maximum of 8 weeks’ pay).

Claims must be brought within 3 months of the flexible working decision being communicated to you and you would be required to go through the ACAS Early Conciliation process, whereby ACAS attempts to assist in reaching a settlement, before issuing your claim.

It is commonplace for a claim under the flexible working legislation to be accompanied by a claim of sex discrimination under the Equality Act 2010.

However, this would only be valid if, for example, your male counterparts were treated differently, or if your employer operates a “no flexible working” policy which puts you and potentially other women at a disadvantage because of childcare responsibilities (unless the company could justify the policy).

For now, press ahead in getting confirmation in writing and ensure you lodge your appeal.

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